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Constitutional Legitimacy, Randy E. Barnett
Constitutional Legitimacy, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed …